This is a repost of my article that I published at MINCOV.COM on June 8, 2010.

So the Government has finally tabled a bill to amend the Copyright Act. The choice of the Bill’s title, Copyright Modernization Act, is surprisingly accurate. This is exactly what it does – it “modernizes” the existing mess. The two primary principles of modernization were compliance and compromise.

Barry Sookman came up with a great analysis of specific changes in the Bill. Some myths about its provisions dealing with Technological Protection Measures (or, “digital locks”) have been debunked by James Gannon.

This article is different. I am not going to go into the details of all the revamped provisions or compare them with C-61. In fact, this article is reminiscent of my recent article, Copyright and the Great Socialist Degradation. In order to assess the Bill, we must understand why we have copyright in the first place. If we do not know where we are going and why we are going there, how can we expect the attempts to modernize the vehicle by which we are traveling to be successful?

Again, there are only two competing reasons why copyright laws are in existence. The first reason is to provide enforcement for the objective law that every person has a right to their property and the fruits of their labour. Under this paradigm, what we protect are the individual rights of free men to trade whatever values they have to offer; and it does not really matter whether or not such protection benefits the society as a whole, since the protected rights are valuable per se. The other, collectivist, view on copyright is that copyright laws exist primarily for the benefit of the public. The “whole society” has a right to use whatever cultural legacy it can get its hands upon, save for what the Government says the society can only use, subject to a copyright owner’s permission. Under this latter paradigm, the only reason to protect copyright is to encourage creativity by vesting certain economic rights in creators.

Historically, these two paradigms have often been confused because of their respective advocates’ attempts to mask their ideas behind those of their opponents. This has led to numerous compromises and to what is usually called today, a “balance of interests”.

Unlike the prevalent view today, compromises are not always good. As Ayn Rand put it, “There can be no compromise between a property owner and a burglar. In any compromise between food and poison, it is only death that can win. In any compromise between good and evil, it is only evil that can profit.”1. If one approach is true and another one is false, then there really is no compromise between the two.

The Copyright Modernization Act expressly states in the Preamble that the reasons for its adoption are, inter alia, “to provide rights holders with recognition, remuneration and the ability to assert their rights; to enhance users’ access to copyright works or other subject-matter; and to enhance the protection of copyright through the recognition of technological measures and other measures, in a manner that promotes culture and innovation, competition and investment in the Canadian economy.” All at the same time!

Imagine an amendment to the Criminal Code that would state in the Preamble that it is adopted “to provide women and children with additional rights and remedies against sexual predators; to enhance rapists’ access to non-violent forms of sexual pleasure; and to enhance family values through encouragement of condom sales in schools”. There really is not much difference between this absurdity and the proposed amendments to the Copyright Act.

There is no middle ground. We may disagree on which philosophical basis we want to found our copyright laws, but it must be one or the other. While the result may turn out to be beneficial for both camps, the primary reason for protection must always be clear. If the cornerstone of copyright protection is the creator (and whichever subsequent owners of copyright that the creator may freely sell his works to), then there is no such thing as “users’ rights”. No one has a right to use something that does not exist unless someone else’s labour or creativity must go (or has gone) to create it. On the other hand, if the cornerstone of copyright protection is the common good, then it is preposterous that we should wish to further broaden the scope of protection granted to creators and industries that humbly keep bringing new chef-d’oeuvres to the altar of the public interest – even without any new rights granted to them by the government. Indeed, if we are to protect the master (the “society”), why would we be granting additional rights to the slave who is not even thinking about a rebellion?

If our paradigm is the common good – why are we implementing the provisions of WIPO 1996 treaties, other than to appease the U.S. and the rest of the world? And if our paradigm is the protection of individual rights of copyright owners – why are we introducing an exception that would allow unauthorized use of preexisting works “for the purpose of parody and satire”, even without going through the trouble of delineating the limits of such purposes?

Aside from the suggestion that the Copyright Modernization Act is an attempt to appease everybody and to do something already, does this attempt to modernize the Copyright Act make any conceptual sense at all?

Two more comments. I consolidated the text of the Copyright Modernization Act with the existing law to make it at least minimally readable. Now, does the structure and, especially, the numbering of sections and subsections produce an impression of a well thought-out document? Does it look like a result of many years’ worth of work? If this were a contract prepared by a law firm for a client, would the client accept it or would he be demanding a document that can actually be understood not only by lawyers who will be happy to litigate it six ways to Sunday?

Why is not the whole thing being rewritten from scratch? I posit that it is exactly because the Government cannot choose behind which values it wishes to stand. There really cannot be a compromise, or a balance here. Either the creators are free to trade on terms that may wish to impose on the use of their works, or they are left to the mercy of the “society” that would decide what is “reasonable and fair” for the creators to enjoy in return for making their works available.

This is why one can often hear a discussion today whether Canadian copyright laws are too weak or too restrictive. There is no way to answer this question without having a standard of values upon which one could base the answer. Too weak for what? To restrictive compared to what? What are we trying to achieve? We are measuring the efficiency of the current law according to what goals?

The Copyright Modernization Act looks like a panicky attempt of overregulation, where a potential fix of one problem through arbitrary rules, inevitably leads to the opening of five more problems that, in turn, get heroically fixed – only to require new fixes and regulations. If the regulation is based on nothing but an attempt to find a compromise between two irreconcilable principles, it will necessarily reveal the arbitrary balance of pull that various players are able to exercise to secure their interests.

This is why it is so hard to comment on the Copyright Modernization Act. The proposed amendments do not add any consistency to the current copyright law. To the contrary, once amended, the new Copyright Act will reflect – even to a greater extent – that it is simply a collection of favours that various groups were able to extort from the Government.

All of this is very sad, albeit understandable. The majority of the electorate have been indoctrinated to become presumptuous about their “rights” to enjoy values created by others. People regard it as natural that progressive taxation should allow the have-nots to receive money to raise their children at the expense of some rich capitalist who would be forced to spend extra hours in the office, away from his own children. The public eduction, public health care, union pensions, users’ rights to use someone else’s works (including the inalienable right to download movies before they are even officially released) are seen as great achievements of a civilized society.

In fact, these are all signs of slavery. No one whose property can be arbitrarily voted away, is truly free. While this may be electorally costly, it is time to finally hear the debate about principles - not about whether “digital locks” would primarily benefit the public or greedy corporations; not about the pros and cons of the parody exception2.. All of this is not about adding or removing ingredients; it is about identifying the whole, the underlying principle, the philosophic nature of the whole. This is the discussion that we must be having. And we should not suppress it by references to some magical balance of interests that only the omniscient Government can be trusted to recognize and impose on its meek subjects.

We must first agree on the standard by which we are to judge the law - is it to serve creators or the public. Simply providing concessions to both camps and hoping that it will appease them, will not do the trick. Appeasement only works to encourage claims for further concessions. One camp would keep requesting new exclusive rights, while the other camp would keep requesting new exceptions. We would keep on making up exclusions from limitations on exceptions from the rights – without even stopping for a second to question why we are doing this. How does this bring us closer to one of the two goals that the copyright law may have. If we want to finally reach a destination, we must know where we are heading to, otherwise we are destined to flounder in the middle of it all, each trying to swim in their own direction.

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